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State v. Johnson

Supreme Court of Utah

October 3, 2017

State of Utah, Appellee,
Michael Waddell Johnson, Appellant.

         On Certiorari to the Utah Court of Appeals Third District, Salt Lake The Honorable Judith S. H. Atherton No. 071900184

          Sean Reyes, Att'y Gen., Karen Klucznik, Asst. Solic. Gen., Salt Lake City, for appellee

          Ronald Fujino, Salt Lake City for appellant.

          Justice Durham authored the opinion of the Court in which Chief Justice Durrant, Justice Himonas, and Judge Kelly joined.

          Having recused himself, Justice Pearce does not participate herein; District Court Judge Keith Kelly sat.




         ¶1 Michael Johnson was found guilty of murder for strangling a woman in her apartment. Mr. Johnson appealed his conviction. On appeal, the court of appeals identified an issue that was not argued by the parties and ordered supplemental briefing, ultimately reversing Mr. Johnson's conviction. We have granted certiorari review to answer a single question: whether the court of appeals correctly concluded that exceptional circumstances merit review of an issue not preserved in the trial court and not argued on appeal. We hold that the exceptional circumstances exception to the preservation rule does not apply here, and we reverse the court of appeals and remand this case so that it may consider the appellant's other unaddressed claims of error.


         ¶2 Michael Johnson was charged and tried for murder. At trial, Mr. Johnson requested an instruction for the lesser offense of homicide by assault. The trial court agreed and stated on the record that it would use the homicide by assault instruction submitted by Mr. Johnson.

         ¶3 The jury returned a guilty verdict on the murder charge, and Mr. Johnson appealed his conviction to the court of appeals. He argued that his conviction should be reversed because the verdict form returned by the jury did not include an option to find him guilty of the lesser offense of homicide by assault[1] and that the jury instruction on causation was erroneous. State v. Johnson, 2014 UT App 161, ¶ 11 & n.5, 330 P.3d 743.

         ¶4 The court of appeals asked for supplemental briefing on an issue that Mr. Johnson had not raised on appeal: whether the homicide by assault jury instruction was erroneous. Id. ¶¶ 12-13. After supplemental briefing, the court of appeals reversed Mr. Johnson's conviction based upon its conclusion that the homicide by assault instruction was erroneous, id. ¶ 29, with each judge on the three-member panel writing separately. The court acknowledged that Mr. Johnson never preserved an objection to the instruction and that Mr. Johnson likely invited the error by submitting the instruction to the court. Id. ¶ 14. The court of appeals decided, however, that the exceptional circumstances exception to the preservation rule permitted the court to examine the unpreserved and likely invited error. Id. ¶¶ 14-19. A majority of the panel reached this conclusion by determining that our decision in State v. Robison, 2006 UT 65, 147 P.3d 448, expanded the doctrine of exceptional circumstances. Johnson, 2014 UT App 161, ¶¶ 16-19, 30-31.

         ¶5 This court granted a petition for certiorari review of the court of appeals' opinion. We agreed to answer "[w]hether the majority of the panel of the court of appeals erred in its application of the exceptional circumstances doctrine to a case in which it acknowledged the error may have been invited and in which Respondent did not argue ineffective assistance of counsel."


         ¶6 We review the court of appeals' application of the preservation rule for correctness. State v. McNeil, 2016 UT 3, ¶ 14, 365 P.3d 699. "This standard of review allows us to apply the [appellate] doctrines at issue here as if we were the first appellate court to consider them." Id.



         ¶7 The court of appeals erred when it determined that State v. Robison, 2006 UT 65, 147 P.3d 448, extended the application of the exceptional circumstances exception to preservation. Given the ambiguity in our precedent, we undertake clarification of when an appellate court may reach an issue that was not preserved in the trial court, and when it may reach an issue sua sponte that was waived by the parties on appeal. We first discuss the historical background against which our rules of preservation and waiver developed, and then we address preservation and waiver and their respective exceptions. Finally, we apply these standards to the case before us.

         A. Writ of Error and Appeal in Equity

         ¶8 Our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments. See Patterson v. Patterson, 2011 UT 68, ¶ 16, 266 P.3d 828 ("Under our adversary system, the responsibility for detecting error is on the party asserting it, not on the court."); State v. Larrabee, 2013 UT 70, ¶ 15, 321 P.3d 1136. This system preserves judicial economy and fairness between the parties. Patterson, 2011 UT 68, ¶¶ 15-16.

         ¶9 Notwithstanding the dominance of this model, our system of appeals has roots in two separate and distinct methods of review available under the old English court system: the writ of error and the appeal in equity. The writ of error was used to review an order or judgment of an English court of law; an appeal in equity was used to review a ruling in a court of equity. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1263 (2002). Writs of error were strictly limited to reviewing orders and judgments made by the court of law on issues raised in that court. Id. Conversely, "[a]ppellate courts in equity were free to consider any issue de novo" and "developed flexible procedures to address the needs of individual cases." Id.

         ¶10 While American courts have developed an appellate system with strict rules governing what issues an appellate court will address, thus more closely resembling the writ-of-error model, both the writ of error and the appeal in equity were consolidated into one set of appellate courts. See id. at 1264 (noting that the writ of error and appeal in equity were combined in U.S. appellate courts, with "[o]ne set of appellate courts administer[ing] both"); Goldberg v. Jay Timmons & Assocs., 896 P.2d 1241, 1242 (Utah Ct. App. 1995) ("Historically, parties could bring actions in a court of law or a court of equity. For procedural purposes, the distinction between law and equity has been abolished and only 'one form of action . . . known as civil action, ' remains." (alteration in original) (citations omitted)); cf. Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 20, 194 P.3d 931 (establishing standard of review for cases in equity as opposed to cases at law). This has created a system that, at times, appears to contain inherent conflicts and has given rise to a certain tension, if not murkiness, regarding preservation, waiver, and when a court may raise an issue sua sponte.

         ¶11 Our court's history in this regard is not unique. Appellate judges across the country have wrestled with the correct balance between law and equity and the scope of review on appeal. See Miller, supra ¶ 9 at 1271 (noting that despite a party's duty to raise issues, appellate judges raise issues sua sponte because they "also see their role as doing justice in the tradition of equity"). For instance, in one case the late Justice Antonin Scalia wrote, "[t]he rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one." United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J, concurring) Yet elsewhere he stated that "the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary" Davis v United States, 512 U.S. 452, 464 (1994) (Scalia, J, concurring).

         ¶12 Despite this historical tension between the two systems, and our general reliance on strict rules governing preservation and waiver, we have maintained that our waiver and preservation requirements are "self-imposed and [are] therefore [doctrines] of prudence rather than jurisdiction." Patterson, 2011 UT 68, ¶ 13. "Consequently, we exercise wide discretion when deciding whether to entertain or reject" issues that are unpreserved at trial or waived on appeal. Id.; see also Salt Lake City v. Carrera, 2015 UT 73, ¶ 17, 358 P.3d 1067 ("[W]e . . . retain discretion over whether to consider issues not raised by the parties."); Utah Dep't of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 8, 275 P.3d 208 (raising the validity of precedent sua sponte). We retain this discretion to "balance the need for procedural regularity with the demands of fairness." State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (citation omitted).

Regardless of whether the practice of appellate courts in raising issues sua sponte that have not been raised in the trial court is analyzed under the law versus equity model or the adversarial versus inquisitorial system model, there is widespread agreement that appellate courts have the authority to engage in this practice.

Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Connecticut, 84 A.3d 840, 859 (Conn. 2014).

         ¶13 In an effort to serve the policy considerations of judicial economy and fairness to the parties, to preserve the adversarial model, and to provide clear guidelines to litigants, we have limited our discretion by creating exceptions to the general preservation rule. Patterson, 2011 UT 68, ¶ 13 ("We have exercised this discretion to recognize some limited exceptions to our general preservation rule."). However, there has arisen some confusion concerning our preservation exceptions, as is evident from the three opinions in the court of appeals in this case. Also, we have rarely touched on when it is appropriate for an appellate court to reach an issue sua sponte that has been waived on appeal. We therefore use this opportunity to clarify our preservation and waiver doctrines and to outline when a court may reach an issue sua sponte. We begin by discussing the terminology of preservation and waiver.

         B. Definitions of Preservation and Waiver on Appeal

         ¶14 Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations. This duty of the parties exists in both the trial court and in the appellate court. If the parties fail to raise an issue[2] in either the trial or appellate court, they risk losing the opportunity to have the court address that issue.

         ¶15 When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation. Patterson, 2011 UT 68, ¶ 12 (stating that appellate courts "generally will not consider an issue unless it has been preserved for appeal"). "An issue is preserved for appeal when it has been 'presented to the district court in such a way that the court has an opportunity to rule on [it].'"[3] Id. (alteration in original) (citation omitted). "To provide the court with this opportunity, 'the issue must be specifically raised [by the party asserting error], in a timely manner, and must be supported by evidence and relevant legal authority.'" State ex rel. D.B., 2012 UT 65, ¶ 17, 289 P.3d 459 (alteration in original); see also O'Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704. (To preserve an issue: "(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority." (citation omitted)).

         ¶16 When a party fails to raise and argue an issue on appeal, or raises it for the first time in a reply brief, that issue is waived and will typically not be addressed by the appellate court.[4] Allen v. Friel, 2008 UT 56, ¶¶ 7-8, 194 P.3d 903 (appellants failing to raise an issue, or raising an issue for the first time in their reply brief, have waived the issue on appeal); Robison, 2006 UT 65, ¶ 22 (agreeing with the Illinois Supreme Court that "[the court of appeals] should not normally search the record for unargued and unbriefed reasons to reverse a [district] court judgment" (alterations in original) (citation omitted)).

         ¶17 Preservation and waiver are not mutually exclusive. There are at least four possible interactions between these two requirements. First, a party may have preserved an issue in the trial court and properly raised it on appeal. In this instance, the appellate court will typically address the issue. Second, a party may have preserved an issue, but failed to properly raise it on appeal, thus waiving it. Third, a party may have failed to preserve an issue in the trial court, but seeks to raise it on appeal. In this instance, the party must argue an exception to preservation. Finally, a party may have failed to preserve an issue in the trial court, and failed to raise and argue the issue on appeal.[5] In any of the second through fourth examples, this court will not typically reach the issue absent some recognized exception.


         ¶18 As mentioned above, parties are required to raise and argue an issue in the trial court "in such a way that the court has an opportunity to rule on [it]." Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original) (citation omitted). A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception. See id.

         ¶19 This court has recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances. When an issue is not preserved in the trial court, but a party seeks to raise it on appeal, the party must establish the applicability of one of these exceptions to persuade an appellate court to reach that issue.

         A. Plain Error

         ¶20 "To demonstrate plain error, a defendant must establish that '(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful . . . .'" State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (alteration in original) (citation omitted). "If any one of these requirements is not met, plain error is not established." State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation omitted).

         ¶21 For an error to be obvious to the trial court, the party arguing for the exception to preservation must "show that the law governing the error was clear, " id. ¶ 16, or "plainly settled, " id. ¶ 18, "at the time the alleged error was made, " id. ¶ 16. For it to be harmful, the error must be shown to have been "of such a magnitude that there is a reasonable likelihood of a more favorable outcome for the defendant." Id. ¶ 22 (citations omitted). This test is "equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel." Id. In determining if the harm was prejudicial, we determine whether there is a "reasonable probability" that, "'but for' the alleged error, " the outcome in the case would have been different. Id.

         B. Ineffective Assistance of Counsel

         ¶22 Ineffective assistance of counsel is sometimes characterized as an exception to preservation. See State v. Griffin, 2016 UT 33, ¶ 22, 384 P.3d 186 ("[I]neffective assistance of counsel claims [are] a recognized exception to our preservation requirements."); see also State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867. But this exception differs from the other preservation exceptions. Under plain error or exceptional circumstances, the court may reach the substantive claim that was not preserved in the trial court. Ineffective assistance of counsel, however, is a stand-alone constitutional claim attacking the performance of a criminal defendant's counsel. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."); see also Strickland v. Washington, 466 U.S. 668, 686 (1984) (stating that the Sixth Amendment "right to counsel is the right to the effective assistance of counsel" (citation omitted)) superseded on other grounds by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. While such a claim necessarily requires the court to look at the substantive issue the defendant argues his counsel should have raised, and whether the substantive issue had any merit, the substantive issue is only viewed through the lens of counsel's performance. Archuleta v. Galetka, 2011 UT 73, ¶ 32, 267 P.3d 232 (ineffective assistance of counsel is an entirely new claim that does not "revive[] the underlying substantive claim"); State v. Hansen, 2002 UT 114, ¶ 21 n.2, 61 P.3d 1062 ("[P]art[ies] may . . . assert ineffective assistance of counsel in failing to preserve [an] issue.").

         ¶23 Ineffective assistance of counsel is thought of as an exception to preservation because a claim for ineffective assistance could not have been raised in the trial court; it does not mature until after counsel makes an error. Thus, while it is not a typical exception to preservation, it allows criminal defendants to attack their counsel's failure to effectively raise an issue below that would have resulted in a different outcome. See State v. Roth, 2001 UT 103, ¶¶ 5, 11, 37 P.3d 1099. This exception applies only in criminal cases, because criminal defendants are the only parties constitutionally guaranteed the right to effective assistance of counsel.

         C. Exceptional Circumstances

         ¶24 Utah appellate courts have characterized the exceptional circumstances exception as "ill-defined, " see Holgate, 2000 UT 74, ¶ 12 (citation omitted), and as an "[im]precise doctrine" that cannot "be analyzed in terms of fixed elements, " State v. Irwin, 924 P.2d 5, 8 (Utah Ct. App. 1996). This is perhaps the source of the confusion generated by State v. Robison, 2006 UT 65, 147 P.3d 448, in the court of appeals. We undertake ...

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